Same-sex couples seeking publicly funded fertility treatment are being discriminated against, court is told

Counsel for two men who want to have a child claimed they have faced an unjustified barrier based on their gender and sexual orientation.

Ronan Lavery KC submitted: “There are different categories of discrimination.”

The couple are involved in a legal battle with health authorities over being denied funded IVF treatment.

They had arranged with a female friend who previously underwent a voluntary sterilisation procedure to act as a host surrogate for them.

Those plans involved a donor egg from another woman being fertilised with sperm from one of the civil partners and then carried through pregnancy.

Under current eligibility criteria, however, publicly funded IVF treatment is not available to anyone who has undergone voluntary sterilisation.

The couple mounted a judicial review challenge against the Department of Health, Belfast Health and Social Care Trust, and the Health and Social Care Board.

In 2022 a High Court judge dismissed their initial bid to establish discrimination.

Based on revised criteria, he held there is no entitlement to direct access to treatment until a medical fertility problem is established.

Plans to appeal were dealt a blow after it emerged that the couple’s friend no longer wishes to act as a surrogate.

With no-one else identified for the role, it was suggested that the case may be academic.

But senior judges decided the legal challenge can continue after being told public funds would still have been refused to a male same-sex partnership, regardless of the proposed surrogate being sterilised.

At a review hearing in the Court of Appeal today, Mr Lavery claimed his clients have been treated unlawfully on two grounds.

“Voluntary sterilisation is a barrier to accessing treatment for a same sex male couple,” he said.

Two men in a relationship are allegedly being treated differently to a female same sex couple or a male and female couple in some circumstances where they also require a host surrogate, according to the barrister.

“The second issue is the provision of donor sperm by the clinic to a same-sex female couples,” he added.

“The comparator is there is a non-provision of donor eggs to a same-sex male couple.”

Responding on behalf of the Department, Philip McAteer confirmed that any alleged discrimination is disputed.

Arguments in opposition to the legal challenge will be set out at the full hearing of the appeal.

Lord Justice Horner, sitting with Mr Justice Scoffield, indicated that the case will be listed sometime after the summer recess.